BackgroundA registered nurse and paramedic at a hospital received a temporary suspension from work as the result of a post she made on her own “Facebook wall.” The nurse’s Facebook wall post indicated paramedics should have allowed a man involved in a museum shooting to die, rather than saving him. Unbeknownst to the nurse, the hospital was made aware of the post, and the nurse was temporarily suspended because management was concerned her comment reflected a “deliberate disregard for patient safety.” The nurse filed suit against her employer alleging it improperly accessed her Facebook wall post about the museum shooting, in violation of the SCA.

Privacy Settings Facebook users are provided with the option of tailoring who can access information posted on their account. For instance, each user may restrict the privacy settings so only certain “Facebook friends” or groups can see wall posts. In this instance, the nurse’s “Facebook friends” included several co-workers, but none of the hospital’s management. Additionally, she had adjusted her privacy settings so only her “Facebook friends” could view the messages she posted onto her wall. Although no one from the hospital’s management could view the nurse’s post on Facebook, one of her co-workers who was her Facebook friend took a screen-shot of her posting and provided a copy of it to the hospital management. The nurse alleged this co-worker was coerced into accessing her Facebook page in the supervisor’s presence and the supervisor then viewed and copied the nurse’s Facebook posting. However, it was later proved the co-worker had acted on his own in providing a copy of the post to management, and was not coerced or asked to provide the posting in any way.

SCA Protected CommunicationsThe SCA provides protection to private electronic communications transmitted via an electronic communication service and in electronic storage, and makes anyone who intentionally accesses such information without authorization liable for the resulting damages. The court determined the Facebook postings were protected communications under the SCA. Obviously, Facebook wall posts are electronic communications transmitted via an electronic communications service. Additionally, all Facebook postings are stored indefinitely on a Facebook server for backup purposes. However, the real analysis concerned whether these communications were “private.” The court stated “Facebook wall posts that are configured to be private are, by definition, not accessible to the general public,” explaining the purpose of the SCA is to protect private information. The court determined information is “private,” and thus protected, as long as the communicator actively restricts the public from accessing the information. In this case, because the nurse took the steps necessary to restrict her wall posts to only be viewable by her “Facebook friends,” rather than the default “public” setting, the court determined the post was protected by the SCA.

Authorized User ExceptionUnfortunately for the nurse, the court’s analysis did not end there. The SCA does not apply with respect to authorized conduct. This “authorized user exception” applies when access to the communication was authorized by a user of the service with respect to communication intended for the user. However, access is not authorized if the purported authorization was provided under pressure or through coercion. While the nurse alleged her co-worker was coerced into providing her wall post to management, it was determined during the case the information was completely unsolicited. The co-worker was designated as a “Facebook friend,” thus, her posting was intended for his viewing. What he chose to do with the post while viewing it, as long as he was not coerced, was of no consequence in this situation. He was an authorized user of the Facebook service and her post was intended for him as a designated “Facebook friend.” Therefore, although the posting was protected by the SCA, the court determined the authorized user exception applied and the employer was not liable.

TakeawayAlthough the company prevailed in this case, employers should be aware of the SCA and other privacy issues when attempting to access or manage an employee’s social media use.

Richard Busch was quoted in The Hollywood Reporter and USA Today about his representation of Jillian Michaels and prevailing against Lion’s Gate. Read the articles here:The Hollywood ReporterUSA Today

Richard Busch interviewed by the BBC in London about U.S. Copyright Law and some of the recent cases on which he has worked. Listen to the interview here.

Richard Busch was cited in The Hollywood Reporter about Ed Sheeran settling the lawsuit over the hit song Photograph.Read the article here.

Eddie Wayland was featured in an article in the Tennessee Trucking News magazine, the official magazine of the Truckload Carriers Association.Read the article here.

Doug Piercewas quoted in the Nashville Post regarding King & Ballow’s victory over the City of Nashville; at issue was the ‘promptness’ for producing records under the Tennessee Public Records Act. A judge ruled the City violated the statute.Read the article here.

Richard Busch was quoted on Law.com about his legal background, experience with copyright infringement cases, and the ‘Blurred Lines’ appeal.Read the article here.

King & Ballow congratulates Eddie Wayland for being named to the 2017 edition of The Best Lawyers in America in the practice areas of: Employment Law - Management, First Amendment Law, Labor Law - Management, Litigation - Labor and Employment and Transportation Law. Mr. Wayland has been consistently recognized by his peers and named to the publication for over 25 years.Read more here.

Richard Busch most recently obtained a favorable decision by the United States Court of Appeals, reversing the district court, and holding that the author of the "Iron Man Theme" from Marvel's "Iron Man" television show, and movies, had submitted sufficient evidence that his creation was not a "work for hire" in order to proceed to trial on his copyright infringement claim. The full decision can be accessed here.

King & Ballow congratulates Eddie Wayland for being featured in an article in the Tennessee Trucking News magazine, the official magazine of the Truckload Carriers Association.Read the article here.

King & Ballow congratulates Richard Busch for being named to Billboard Magazine’s 2016 “Music Industry's Top Lawyers.”Read more here.

Richard Buschwas quoted in Rolling Stone Magazine on the new 'Stairway to Heaven' case.Read the article here.

Eddie Wayland is featured in the Truckload Authority magazine, the official publication of the Truckload Carriers Association in the article, “Labor Pains: New Labor Laws Could Cause You Pain If You Are Not Prepared.” Read the article here.Richard Busch takes on another high-profile copyright infringement case.Read the article here.

King & Ballow congratulates Eddie Wayland for being named to the 2016 edition of The Best Lawyers in America, wherein the top 4% of attorneys in the country are recognized. Mr. Wayland has been consistently named to the publication for over 25 years.Read more here.

King & Ballow congratulates Richard Busch for being named to Billboard Magazine’s 2015 “Music's Most Powerful Attorneys,” where he was one of only four litigators named.Read more here.

Richard Busch was a featured litigator in Billboard Magazine regarding the “Blurred Lines” case.Read the article here.

Richard Busch appeared on America’s Newsroom this morning to discuss Bill Cosby’s 2005 admission to purchasing Quaaludes to drug women.Watch the video here.

Richard Busch is frequently asked to discuss legal issues on Fox Business News. He recently appeared to discuss the class action lawsuits filed against Manny Pacquiao, and others, related to the alleged non-disclosure of a shoulder injury prior to the fight against Floyd Mayweather.Watch the video here.

King & Ballow congratulates Paul Duvall for being named to Martindale Hubbell Top Lawyers list for Wage & Hour for 2014 and 2013. Click here to read the article.

King & Ballow congratulates Richard S. Busch for being named to the Hollywood Reporter's 2013 list of the top 100 entertainment lawyers in the United States. This is the second year in a row Mr. Busch has been so honored. Mr. Busch, who has been with King & Ballow since 1991, is the partner in charge of the Firm's Entertainment and Intellectual Property sections.Click here to read the article.

Steve Douse was quoted in the article, National Newspaper Association Challenges Valassis, Inc. | Post Deal in Federal Court. Regarding competition with the USPS, Douse said, “It forces firms to compete with the Postal Service and Valassis with one hand tied behind their backs.”Click here to read the article

Richard Busch'sForbes Magazine article, Fighting For The Right To Superman's Copyright: More Brutal Than Anything Lex Luthor Could Have Imagined Click here to read the full article.